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20–376 PDF 2016

S. Hrg. 114–325

EXAMINING AGENCY DISCRETION IN SETTING AND ENFORCING REGULATORY FINES

AND PENALTIES

HEARING BEFORE THE

SUBCOMMITTEE ON

REGULATORY AFFAIRS AND FEDERAL

MANAGEMENT OF THE

COMMITTEE ON

HOMELAND SECURITY AND

GOVERNMENTAL AFFAIRS

UNITED STATES SENATE

ONE HUNDRED FOURTEENTH CONGRESS

SECOND SESSION

FEBRUARY 11, 2016

Available via http://www.fdsys.gov

Printed for the use of the Committee on Homeland Security and Governmental Affairs

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COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

RON JOHNSON, Wisconsin, Chairman JOHN MCCAIN, Arizona ROB PORTMAN, Ohio RAND PAUL, Kentucky JAMES LANKFORD, Oklahoma MICHAEL B. ENZI, Wyoming KELLY AYOTTE, New Hampshire JONI ERNST, Iowa BEN SASSE, Nebraska

THOMAS R. CARPER, Delaware CLAIRE MCCASKILL, Missouri JON TESTER, Montana TAMMY BALDWIN, Wisconsin HEIDI HEITKAMP, North Dakota CORY A. BOOKER, New Jersey GARY C. PETERS, Michigan

KEITH B. ASHDOWN, Staff Director GABRIELLE A. BATKIN, Minority Staff Director

JOHN P. KILVINGTON, Minority Deputy Staff Director LAURA W. KILBRIDE, Chief Clerk

BENJAMIN C. GRAZDA, Hearing Clerk

SUBCOMMITTEE ON REGULATORY AFFAIRS AND FEDERAL MANAGEMENT

JAMES LANKFORD, Oklahoma, Chairman JOHN MCCAIN, Arizona ROB PORTMAN, Ohio MICHAEL B. ENZI, Wyoming JONI ERNST, Iowa BEN SASSE, Nebraska

HEIDI HEITKAMP, North Dakota JON TESTER, Montana CORY A. BOOKER, New Jersey GARY C. PETERS, Michigan

JOHN CUADERESS, Staff Director ERIC BURSCH, Minority Staff Director

RACHEL NITSCHE, Chief Clerk

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C O N T E N T S

Opening statement: Page Senator Lankford .............................................................................................. 1 Senator Heitkamp ............................................................................................ 2 Senator Peters .................................................................................................. 7 Senator Portman .............................................................................................. 10 Senator Ernst .................................................................................................... 12

Prepared statement: Senator Heitkamp ............................................................................................ 27

WITNESSES

THURSDAY, FEBRUARY 11, 2016

Jordan Barab, Deputy Assistant Secretary, Occupational Safety and Health Administration, U.S. Department of Labor ....................................................... 4

Susan Shinkman, Director, Office of Civil Enforcement, Office of Enforcement and Compliance Assurance, U.S. Environmental Protection Agency .............. 6

ALPHABETICAL LIST OF WITNESSES

Barab, Jordan: Testimony .......................................................................................................... 4 Prepared statement .......................................................................................... 28

Shinkman, Susan: Testimony .......................................................................................................... 6 Prepared statement .......................................................................................... 39

APPENDIX

Responses to post-hearing questions for the Record: Mr. Barab .......................................................................................................... 45 Ms. Shinkman ................................................................................................... 54

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EXAMINING AGENCY DISCRETION IN SETTING AND ENFORCING REGULATORY FINES AND

PENALTIES

THURSDAY, FEBRUARY 11, 2016

U.S. SENATE,SUBCOMMITTEE ON REGULATORY,

AFFAIRS AND FEDERAL MANAGEMENT,OF THE COMMITTEE ON HOMELAND SECURITY

AND GOVERNMENTAL AFFAIRS, Washington, DC.

The Subcommittee met, pursuant to notice, at 9:33 a.m., in room SD–342, Dirksen Senate Office Building, Hon. James Lankford, Chairman of the Subcommittee, presiding.

Present: Senators Lankford, Portman, Ernst, Heitkamp, and Pe-ters.

OPENING STATEMENT OF SENATOR LANKFORD

Senator LANKFORD. Good morning, everyone. I am glad that ev-eryone is here for this Subcommittee hearing.

The Subcommittee has held a series of hearings examining the regulatory process. We determined over the course of these hear-ings that a robust, efficient process will lead to better regulations and better regulatory outcomes. We have not had a lot of dissent on that. It is a matter of just working on the process.

Today’s hearing focuses on the proper role of regulatory enforce-ment. It goes without saying that writing a law or developing a regulation is easier than actually enforcing it across the 50 States and our Territories in a fair, predictable, and consistent manner. But doing so is essential. Fair, predictable, consistent regulatory enforcement procedures must be understandable for all stake-holders.

I believe that most Federal agencies agree that transparency is important and that providing accessible compliance assistance services is essential to any comprehensive enforcement regime. Safety, fairness, fighting discrimination are all great goals of our regulators and of enforcement. I think that is a reasonable thing.

But, as we have learned from previous hearings, the sheer mag-nitude of the Code of Federal Regulations (CFR) means that under-standing and complying with regulations is a gargantuan task for most individuals and businesses. The complexity of the regulatory system, coupled with the fear that failure to comply, even if com-plying is completely accidental, will result in a fine or penalty, that

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means that a business will feel they are targeted for arbitrary vio-lations that they do not fully understand.

As a result, regulated parties often feel confused. They deal with conflicting compliance information and it leaves them vulnerable to the whims of any regulator. In fact, one small business owner from one of the States mentioned back to us that when faced with the overwhelming number of regulatory requirements, ‘‘what chance does a business have? ’’

Indeed, many individuals and businesses believe that agency offi-cials enforce regulations in an unfair, unpredictable, and arbitrary manner. Because businesses often feel they are targeted arbi-trarily, they are understandably fearful at times of Federal regu-lators.

I hear stories from businesses that their only interaction with agency enforcement issues is to inspect and issue fines. As a result, my constituents tell me that their relationship with agencies have deteriorated and that instead of inspectors working with businesses to identify and solve compliance problems, government regulators show up, issue a fine and punishment.

When businesses choose to avoid interaction with Federal agen-cies and dread inspections, our shared regulatory goals are not achieved and we have a breakdown between the government that is designed to serve people and the people that they serve.

Agencies should play an active role in changing this culture. Agency officials, starting at the top, can set the tone by empha-sizing compliance assistance, prevention through education, so that finable offenses, not to mention larger tragedies, do not occur in the first place. If businesses are no longer apprehensive in approaching an agency when they need clarification, they will likely find regu-latory compliance easier and it will be more successful in compli-ance goals. In turn, all of us will enjoy safer workplaces and a cleaner environment.

I look forward today to discussing our shared goals and feasible solutions. It is my hope we can start setting a tone in all of our agencies that helps engage with people and helps the people that are designed to serve the Nation and the people that we serve to actually have a better relationship in the days ahead.

With that, I would recognize Ranking Member Senator Heitkamp for her opening remarks.

OPENING STATEMENT OF SENATOR HEITKAMP

Senator HEITKAMP. Thank you, Chairman Lankford, for holding this hearing today and, giving us all an opportunity to explore this topic in our regulatory process.

I am interested in hearing from our witnesses today as we exam-ine how regulatory enforcement is working on the ground to im-prove compliance as we identify ways in which Congress and the administration can work together to improve compliance with our regulations.

For our Nation to be successful and safe, for our citizens to be able to work hard and provide for their families, we need a regu-latory process that works for American business and American families. That means we need to have enforcement mechanisms to ensure everyone is playing by the same set of rules.

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To that end, fines, penalties, restitution orders, and other sanc-tions are critical tools that the government has at its disposal to achieve compliance and deter wrongdoers from violating Federal laws and regulations. Without such tools, agencies have very little leverage in which to ensure the safety and health of our citizens and our environment.

However, on the other side of the same coin, I believe that ensur-ing regulated agencies and entities have the necessary resources and information to successfully comply with regulations should also be our top priority. In fact, we have these mechanisms to ensure compliance and no one should feel like they are living in a ‘‘gotcha’’ world, where they are unaware of what the requirements are and only fearful that the sheriff will show up and slap a big fine on when they did not even know that they had an obligation to comply with a regulation.

So, therefore, I am also interested in learning how your agencies focus their energy and resources on compliance assistance pro-grams and ensure that entities are aware of what those require-ments are. Specifically, I would like to know how both of your agencies work with small business to ensure that regulatory re-quirements are clear, transparent, and accessible. I know that both of your agencies work very closely with the Small Business Admin-istration (SBA) and their office to ensure that small business con-cerns are appropriately addressed and quickly addressed.

So, I look forward to hearing from both of you and hearing your insights as part of this all-important job that we have to do, which is to keep our citizens safe.

Senator LANKFORD. At this time, we will proceed with testimony from our witnesses.

Jordan Barab is the current Deputy Assistant Secretary of Labor at Occupational Safety and Health Administration (OSHA), a post he has held since April 2009. Prior to his current position, Mr. Barab served as Special Assistant to the Assistant Secretary of Labor for OSHA. Mr. Barab has also worked with the U.S. Chem-ical Safety and Hazard Investigation Board and for the House Edu-cation and Labor Committee. Thank you for being here, Mr. Barab.

Susan Shinkman is the Director of the Office of Civil Enforce-ment (OCE) at the Environmental Protection Agency (EPA), a post that she has held since August 2012. Prior to this post, she served as the Chief Counsel to the Pennsylvania Department of Environ-mental Protection. She also served as Chief Counsel to Pennsylva-nia’s Inspector General (IG) and the Pennsylvania Department of Labor and Industry. Ms. Shinkman also served as Assistant United States Attorney in the U.S. Attorney’s Office for the Eastern Dis-trict of Pennsylvania.

I would like to thank you both for appearing here as witnesses. It is the tradition and custom of this Subcommittee to swear in all witnesses, so if you would please stand and raise your right hand.

Do you swear that the testimony you will give before this Sub-committee will be the truth, the whole truth, and nothing but the truth, so help you, God?

Mr. BARAB. I do. Ms. SHINKMAN. I do.

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1 The prepared statement of Mr. Barab appears in the Appendix on page 28.

Senator LANKFORD. Thank you. You may be seated. Let the record reflect the witnesses have answered in the affirmative.

We will use a timing system. You will see a countdown clock in front of you. We are not strict on time except that we have 10:30 votes that are being called today, and so be very attentive to time to make sure that we get plenty of time for your testimony as well as the questions of those that are here at the dais today. Your writ-ten testimony will already be a part of the permanent record, so anything in your oral testimony that you would like to share be-yond your written testimony is acceptable, whatever may be.

Mr. Barab, typically, we go ladies first, but today, we are making an exception to be able to have you go first, if you are OK with that, and have you be able to kick off today. So, we will receive your testimony now.

TESTIMONY OF JORDAN BARAB,1 DEPUTY ASSISTANT SEC-RETARY, OCCUPATIONAL SAFETY AND HEALTH ADMINIS-TRATION, U.S. DEPARTMENT OF LABOR

Mr. BARAB. Thank you very much. Good morning, Chairman Lankford, Ranking Member Heitkamp, and distinguished Members of the Subcommittee. Thank you for inviting me here today.

As Deputy Assistant Secretary of Labor for the Occupational Safety and Health Administration, I am honored to testify about the important work we are doing. As you know, OSHA’s mission is to ensure the safety and health of roughly 130 million workers. Over the last 45 years since OSHA was created, we have made dra-matic progress in reducing work-related deaths and injuries, but there is still a great deal more to do.

I would like to begin today by briefly discussing OSHA’s inves-tigation and citation process. OSHA recognizes that most employ-ers want to keep their employees safe, but there are still far too many employers who cut corners and fail to protect their employ-ees. For these employers, avoiding OSHA penalties remains an ef-fective incentive.

Under the OSH Act, the Department is authorized to conduct in-spections and issue penalties for health and safety hazards. The OSH Act also sets forth the types and amounts of potential pen-alties. For instance, OSHA penalties for willful or repeat violations have a maximum of $70,000 for each violation. Penalties for serious violations have a maximum of $7,000 per violation. Until recently, these figures have remained static. However, the 2015 bipartisan budget bill passed by Congress raised penalties and provided an opportunity for penalties to be indexed to inflation for the first time.

The primary purpose of the penalties is deterrence. Any funds collected are deposited in the U.S. Treasury and are not used to support agency functions.

OSHA carefully considers the impact of our penalties on small businesses. We take into account several factors. OSHA generally reduces penalties for small employers as well as those acting in good faith and employers with no recent citations. In fact, the aver-age OSHA penalty for a serious violation is roughly $2,000. Sadly,

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these penalties can often seem too low. This is particularly true for incidents involving worker fatalities, where the penalty is often only a few thousand dollars.

Workplace inspections and investigations are conducted by OSHA compliance officers. They are trained safety and health pro-fessionals who are given strict procedures that they must follow. OSHA conducts two general types of inspections, programmed and unprogrammed. Programmed inspections account for roughly 46 percent of inspections and specifically target the most dangerous workplaces and the most recalcitrant employers. Unprogrammed inspections account for 54 percent of inspections. They are initiated for several reasons, including worker complaints, referrals, em-ployer reports, and followup inspections.

OSHA’s primary goal is correcting hazards, not issuing citations or collecting penalties. As a result, when OSHA issues a citation, we always offer the employer an informal conference with the area director. The agency and the employer may work out a settlement agreement. Last year, 65 percent of inspections with a citation re-sulted in informal settlements.

Alternatively, employers can formally contest the alleged viola-tions and/or penalties. Last year, this happened in 7.4 percent of cases. These contests were sent to the Occupational Safety and Health Review Commission for independent review.

At the same time, we recognize that most employers want to do the right thing and we are committed to ensuring that they have the tools and information they need. This is why we have made compliance assistance a priority. We work diligently to provide training, educational materials, and consultation services to em-ployers and workers. New OSHA standards and enforcement initia-tives are always accompanied by webpages, fact sheets, guidance documents, webinars, interactive training programs, and special products for small businesses.

The cornerstone of this effort is our onsite consultation program for small and medium-sized businesses. Last year, close to 30,000 employers took advantage of this free, high-quality service. A full 87 percent of these visits were to businesses with fewer than 100 employees.

OSHA also continues its strong support for recognizing employ-ers who make safety and health a priority. Through the Safety and Health Achievement Recognition Program (SHARP) and the Vol-untary Protection Program (VPP), we recognize employers who have developed outstanding injury and illness prevention pro-grams. SHARP and VPP employers demonstrate that safety pays. They serve as models for other businesses to follow.

Another critical piece of our strategy effort is the Susan Harwood Training Grant Program. This program provides funding to non-profit organizations for valuable training and technical assistance for vulnerable workers and workers in small businesses.

OSHA also provides additional cooperative programs designed to encourage, assist, and recognize efforts to eliminate hazards and enhance workplace safety and health practices. For example, OSHA has an alliance with the National Service Transmission, Ex-ploration, and Production Safety (STEPS) Network, along with the National Institute for Occupational Safety and Health (NIOSH), to

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1 The prepared statement of Ms. Shinkman appears in the Appendix on page 39.

help employers reduce injuries and fatalities in the oil and gas in-dustry.

Thank you again for the opportunity to testify about the work we are doing every day to improve the safety and health of American workers and how we put great effort into making sure employers have all the necessary tools they need to meet their responsibil-ities.

I would be pleased to answer any questions you may have. Senator LANKFORD. Thank you. Ms. Shinkman.

TESTIMONY OF SUSAN SHINKMAN,1 DIRECTOR, OFFICE OF CIVIL ENFORCEMENT, OFFICE OF ENFORCEMENT AND COM-PLIANCE ASSURANCE, U.S. ENVIRONMENTAL PROTECTION AGENCY

Ms. SHINKMAN. Thank you, Mr. Chairman, Ranking Member Heitkamp, and Members of the Subcommittee. I am Susan Shinkman. I am the Director of the Office of Civil Enforcement, an office within EPA’s Office of Enforcement and Compliance Assur-ance. We are responsible for developing and prosecuting civil, ad-ministrative, and judicial cases and providing legal support for cases and investigations initiated by EPA regional offices. Thank you for the opportunity to testify about how EPA meets the chal-lenge of ensuring consistent implementation and enforcement of Federal environmental laws and regulations.

Our mission is to protect both human health and the environ-ment by ensuring compliance with environmental laws. EPA re-gions support the national programs while working to ensure that EPA’s work complements State, Tribal, and local environmental priorities.

To provide consistency across the regions and headquarters, the civil enforcement and compliance programs employ statute-specific policies to address compliance monitoring, enforcement responses to violations, and penalty assessments.

EPA recognizes the role of small businesses in the Nation’s econ-omy and has developed innovative compliance assistance tools to help the small business community understand and comply with environmental requirements. When a new rule implemented—im-pacting small entities EPA prepares Small Entity Compliance Guides, which explain the actions that a small entity must take to comply. When EPA conducts an inspection of a small business, we hand out information related to the rights of the small business. Under our small business compliance policy, EPA will eliminate or significantly reduce penalties for small businesses that discover violations and promptly disclose and correct them.

In recognition of these efforts, the Small Business Administra-tion has given EPA’s enforcement and compliance program as it af-fects small businesses an A rating for every year since 2005.

One of the ways that EPA’s regional offices, together with their State, local, and Tribal partners, monitor compliance is through in-spections of facilities. Inspectors record observations and identify areas of concern, and at the conclusion of the inspection, they will discuss their observations with the regulated entity. If followup is

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needed, EPA will work with the regulated entity to remedy the vio-lations.

The vast majority of our enforcement cases are resolved through a settlement. Approximately 90 percent are handled administra-tively, while larger, more complex matters are usually handled as civil judicial cases in conjunction with the Department of Justice (DOJ).

In addition to injunctive relief to ensure compliance, EPA does seek penalties to achieve deterrence and remove any significant economic benefit resulting from noncompliance. This levels the playing field by preventing companies that break the law from hav-ing an unfair competitive advantage. EPA’s penalty policies also provide for a reduction in penalty based on ability to pay.

EPA has made tremendous progress toward achieving cleaner air, water, and land over the last four decades. We will continue to work with States, Tribes, and local governments to make smart choices about priorities, to take advantage of innovations, and to ensure that the most important work is done first.

EPA’s enforcement program is designed to produce consistent and fair results that achieve compliance, cure noncompliance, deter future violations, and benefit human health and the environment.

Thank you for the opportunity to testify and I would be happy to answer any questions.

Senator LANKFORD. Thank you. Thank you both. The Chairman and Ranking Member are going to defer our ques-

tions toward the end and I would recognize Senator Peters for the first question.

OPENING STATEMENT OF SENATOR PETERS

Senator PETERS. Thank you, Mr. Chairman, and thank you for deferring. I do need to leave to speak on the floor, so I appreciate this opportunity. I will be on the floor talking about the situation we have in Flint, Michigan, and appreciate the opportunity to ask a question of Ms. Shinkman.

Ms. Shinkman, on December 8, 2009, the EPA sent a memo-randum to its regional administrators titled, ‘‘Proposed Revisions to Enforcement Response Policy for the Public Water System Super-vision Program.’’ In this document, which is attributed to an As-sistant Administrator in your office at the time, Cynthia Giles, the memo outlines a risk-based approach for enforcement of the Safe Drinking Water Act to target repeat violators by assigning points based on the number and severity of violations. Page six of this document outlines EPA’s enforcement response policy model for re-peat violators. This policy states, and I quote, ‘‘Responses to viola-tions should escalate in formality as the violation continues or oc-curs.’’

Additionally, I understand that in those States with primacy over enforcement, EPA is authorized after 30 days under the Safe Drinking Water Act to take certain actions to return a system to compliance. These authorities allow the EPA to issue administra-tive orders, impose fines, and pursue other civil and even criminal actions. The same EPA policy document explains that most enforce-ment actions are administrative in nature, but, I quote, ‘‘judicial

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cases are also an important enforcement tool and the use of judicial authority is encouraged.’’

So, understanding your agency’s wide discretion in decisions of whether to levy fines against violators of our Nation’s environ-mental laws, in the case of the Safe Drinking Water Act, we have a document here that encourages the EPA to seek judicial remedies when formal enforcement actions are necessary, whether in the form of injunctive relief, civil penalties, or criminal action.

With this in mind, I want to direct your attention, as I men-tioned, to my home State, in the city of Flint, where we, as you know, have a very difficult situation, where there have been a se-ries of bad decisions that now have subjected the entire city to toxic lead-tainted water. Nearly 2 years ago, an unelected emergency manager that was appointed by Governor Snyder changed Flint’s water source to the Flint River in order to save some money, and we know the result of that State decision has been catastrophic.

The water crisis in Flint is an immense failure of Michigan State Government, certainly. The Michigan Department of Environ-mental Quality (MDEQ) has admitted they failed to properly follow the Federal lead and copper rule and that they chose not to ensure optimal corrosion control treatment was in place going forward.

Your agency’s own emergency order invoked under authorities of the Safe Drinking Water Act on January 21 of this year states in its findings of fact, and I quote, ‘‘The presence of lead in the city water supply is principally due to the lack of corrosion control treatment after the water source was switched and the city of Flint MDEQ and the State have failed to take adequate measures to pro-tect public health.’’ The emergency order also reserves EPA’s right to commence civil action and assess civil penalties in order to en-sure compliance with this order.

However, the same document explains that EPA Region 5 staff first expressed concern about the lack of corrosion control back in May. That means the emergency order was issued at a minimum of 7 months after the EPA’s concerns were first communicated to the State.

So, if I am reading this law right, the EPA only has to wait 30 days before it can pursue enforcement actions on its own separate from the State, and at the very least, the EPA needs to have some authority to tell the public directly about this health crisis. That is why I have introduced legislation to require the EPA to notify the public after 15 days if a State has not done so. The House passed similar legislation just yesterday.

So, my question to you is fairly simple. If your agency’s own pol-icy document encourages judicial action when a situation is esca-lating, why did the EPA wait so long to take action in Flint?

Ms. SHINKMAN. Senator, I appreciate your question and certainly your concerns. This is a very tragic and catastrophic issue. The au-thority under the Safe Drinking Water Act is to give primacy to the States to try and do their enforcement and make sure that the Safe Drinking Water Act is properly administered. In this case, clearly, there was a falling down on the appropriate measures. The EPA Regional Office, Region 5, was monitoring what was going on with the State over a period of time. Obviously, a significant amount of time passed in which perhaps other action should have been taken.

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My office became aware of it in the fall of last year. We worked with the region. We were monitoring what was going on. And, at the time we became aware of it, there were steps that were being taken. We monitored them as well as we could. When we realized that the situation required emergency action, we took the action on January 21 and issued that order.

The order is very specific. It is issued to the State, the MDEQ, and the city of Flint. It has very specific requirements over a short period of time. We are monitoring that order on a daily, almost hourly, basis to make sure that we try to bring the city back into compliance and improve the drinking water in the city of Flint.

We have taken that action. The most immediate need was to do emergency action. If that does not work, we will obviously be fol-lowing through with other enforcement actions, potentially judicial.

Senator PETERS. Well, and I know my time has expired, but I re-alize that you have taken action and have been much more focused on the Flint situation now, which I appreciate. But, why did that not happen months ago? As you know, every month that goes by with tainted water and children, in particular, who are consuming water with lead that creates irreparable damage to their brains, why was this not treated as a crisis immediately?

Ms. SHINKMAN. I cannot answer for everyone who was involved in it. I can say from my office, as we became more aware of it, we moved and we took the most appropriate action we could in Janu-ary. Other people’s actions earlier, I cannot account for all of them. I recognize the fact that it is a very important issue. It is certainly being looked into by a lot of people.

Senator PETERS. So, what do we need to do going forward? How can we prevent this from ever happening again? What sort of ac-tions do we need to take, or is there anything that we need to be doing working with you at the EPA?

Ms. SHINKMAN. From the EPA’s standpoint, we are very aware of what happened. We are going to try and make sure it does not happen again. We are looking back at what happened here, and looking forward, we are scouring to make sure that something like that does not ever happen again. The authority is there. The emer-gency existed. We issued the emergency order. In a similar case, we would certainly issue a similar emergency order as soon as we could.

Senator PETERS. Well, and I understand that there was some confusion within the EPA as to whether or not they should go pub-lic or whether or not you should go public with some of the tests that were coming forward, that is why I have introduced legislation with Senator Stabenow to require immediate public disclosure if a State does not take action, if a State is not making these tests available to the public that show elevated levels of lead or other toxins. I believe the House bill has even a quicker timeline of 24 hours that you have to report. Our bill has 15 days.

But, we need to be very clear that if the EPA sees something, that you go public. There should be no ambiguity about that. It should be clear cut, straightforward, that the public has a right to know. Certainly, the State of Michigan bears primary responsibility for this crisis. There is no question about that. They need to step up. They broke it. They need to fix it. But, certainly, I am ex-

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tremely disappointed with the EPA’s response on this, as are so many people, and I think we can never tolerate the EPA not going public immediately when you have a building crisis of this mag-nitude.

So, I will continue to work with you and your office and I look forward to working closely so that we can do whatever it takes to make sure that this never, ever happens again.

Thank you. Senator LANKFORD. Senator Portman.

OPENING STATEMENT OF SENATOR PORTMAN

Senator PORTMAN. Thank you, Mr. Chairman, and let me just start by saying, with regard to Senator Peter’s comments on water quality, we are working with the EPA on some issues in my State of Ohio. I do not know if you know Bob Kaplan, your Assistant Ad-ministrator, but I have spoken to him directly about some of these same issues. In our case, it is a small community called Sebring, Ohio, and the mayor, Mayor Pinkerton, and I have talked on occa-sion about, over the last 2 or 3 weeks, about EPA’s role. We want to be sure EPA is providing the technical expertise and providing the kind of oversight that they are required to, but also providing transparency.

So, I would ask you today, Ms. Shinkman, because you are here and because this topic is timely, if you could please ensure that, in fact, we are not having another case where the EPA is not pro-viding the right kind of information to the people who are depend-ing on the water supply. We think things are under control in Sebring right now, but in my conversations with Mr. Kaplan, I made it clear that we expect EPA to do its job and to provide the transparency to the people of that community.

Ms. SHINKMAN. I appreciate that, Senator. I am aware of the sit-uation. I believe EPA is directly involved at this point and will con-tinue to monitor it.

Senator PORTMAN. And, I want to thank the Chairman and Ranking Member for holding this hearing. We once again are see-ing this Subcommittee do good work, and this is a Subcommittee to look at regulations and, therefore, the regulatory process includ-ing regulatory fines and penalties. They roll up their sleeves and jump into this, the Chairman and Ranking Member, and I really appreciate that, because I think there is increasing power in the regulatory system that has not had the proper oversight and this is one area.

If you are a small business person, it is intimidating. You do not have the compliance people to figure out what all these potential regulatory issues are, much less what the fines and penalties might be, and if there is not a consistency in terms of the application and transparency in terms of what the rules are, it makes it very dif-ficult, one, to comply, and two, again, just intimidation of not being able to figure out what the rules are.

Mr. Barab, I did not get to hear your whole testimony, but I got to read some of it just now, and I appreciate your being here today and talking about what OSHA is doing to try to make it easier for people to understand, particularly small businesses, what the rules

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are. You have a thousand inspectors out there, is that right? I saw that in your testimony.

Mr. BARAB. Yes, a thousand in the Federal level and probably another 1,100——

Senator PORTMAN. At the State level? Mr. BARAB [continuing]. Among the 28 State plans. Senator PORTMAN. Yes. So, you have 2,100 people, at least, but

a thousand at the Federal level. That is a lot of people, and if you have the kind of flexibility I saw in your testimony and you have different applications depending on the situation, how do you have consistency, and what are you doing to ensure that there is a con-sistent application across the agency, understanding that flexibility is something you also want, because in some instances, that flexi-bility can be very helpful to a small business, to work more as a partner with them to resolve issues rather than an enforcement measure to punish them for something that they did not have the expertise to handle. So, talk about that.

Mr. BARAB. Yes. Thanks for the question. It is a good question, because that is one of our major challenges always, ensuring con-sistency among our inspectors around the country.

We do train our inspectors very carefully when they first come on and continuously thereafter to ensure that they are complying with the procedures. We have what is known as our Field Oper-ations Manual, which is a notebook about this size which contains all the procedures, all the enforcement procedures, the penalty pro-cedures, the appeal procedures, everything that an inspector needs to make sure that they are doing their job, again, with that consist-ency, with the transparency that we value.

We monitor that. I mean, we have a whole staff in Washington making sure that our inspectors do follow those procedures. We work very closely with our solicitors, again, when we run into dif-ficult problems, again, to ensure that kind of consistency.

Now, we also do, as you mentioned, have some flexibility there, and I think that is a good thing, because we are dealing with many employers who have a right to, and we listen to their defenses when that happens. We have a process where we have informal conferences after we issue the citations in order to discuss the problems that we found and to talk about possibly reducing fines or changing the citations. So, I think we do try to balance those procedures with some flexibility.

Senator PORTMAN. Thank you. I appreciate that. And, again, your testimony was helpful in that regard and this Subcommittee is going to be looking at ways to increase that transparency and to let people know what the issues are that they have to address, but also, how the fines and penalties work.

And, Ms. Shinkman, my time has now expired, but I assume that you are going to answer this further, how the EPA could increase the transparency in terms of letting people know what is going on. I am going to turn it back to the Chairman and Ranking Member, but I look forward to hearing what your response is to that.

Senator LANKFORD. Ms. Shinkman, if you want to go ahead and answer that, you are certainly welcome to.

Ms. SHINKMAN. Thank you. Yes, we are very concerned about those issues, as well—consistency, transparency, and flexibility in

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all of our penalty policies and our regulatory actions. For trans-parency, we have all of our policies on the web. They are available for anyone and you can see them by statute or by program area. Any of our proposed settlement agreements are open for public comment.

For consistency, we have actually a specific policy for each stat-ute that are applicable across all ten regions and headquarters so we all have the same standards to apply. We have training for our inspectors that is also done across the ten regions and with head-quarters.

We are also very concerned about flexibility, because we face big industries and small businesses, and so we have built into all of our policies many standards that we can look to to make sure that we are applying them flexibly. For example, we look at the compli-ance history of the entity. We certainly look at the size of the enti-ty. That is a big issue for us because of the disparities that we see. We look at the good faith efforts to comply as opposed to willful-ness of noncompliance. We look at the duration of any violation. And we also look at the seriousness of it.

And, finally, in any penalty situation, we look at the ability of the violator to pay so that we can be addressing that realistically before we settle on any final penalty.

Senator PORTMAN. Thank you, Mr. Chairman. Senator PORTMAN. Senator Ernst.

OPENING STATEMENT OF SENATOR ERNST

Senator ERNST. Thank you, Mr. Chairman, and thank you both for your testimony today.

Ms. Shinkman, we do not have to look any further than a lot of headlines out there today to see that the American public does not have a lot of faith nor trust in our government and government of-ficials. That is quite evident with what we see going on in the pri-maries, the caucuses, and, of course, what we see with a number of agencies across the Federal Government. Could you please tell me the last time that Administrator McCarthy reviewed the proce-dures of the onsite inspectors.

Ms. SHINKMAN. I am sorry, I cannot answer that. I will be happy to get back to you and look into that.

Senator ERNST. If you would, please. Ms. SHINKMAN. Sure. Senator ERNST. And, do you know, has she ever participated in

an inspection from start to finish to better understand what our small businesses must do to comply with their inspections?

Ms. SHINKMAN. I will certainly look into that. Senator ERNST. OK. And, my point of this is that there are a lot

of bureaucrats out there that will simply throw out rules and regu-lations without understanding the full impact from start to finish, both the labor intensity in any of these rules and regulations or the cost to the businesses. I think it is disregarded so many times.

So, I would like to see leaders leading from the front and under-standing what they are instructing our civilian population, our companies, our small businesses, to comply with. It is easy to sit in an office and push out rules and regulations, but we need lead-ers that are willing to go on the ground and actually walk through

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these situations with those business owners so they get it. Our American public feels that our bureaucrats do not get it. They have lost touch with what is going on out in the communities.

As you know, EPA’s Waters Rule is very concerning to many in my State, as well as many others out there, and I want to take a minute to get some clarity on the interim Clean Water Act settle-ment penalty policy, and I am going to quote here. It says that, ‘‘it sets forth how the agency generally expects to exercise its enforce-ment discretion in deciding on an appropriate enforcement re-sponse and determining an appropriate settlement penalty.’’

And then I am going to walk you through the formula on how to calculate a penalty. Again, ‘‘The settlement penalty is calculated based on this formula. Penalty equals economic benefit plus grav-ity, plus or minus gravity adjustment factors, minus litigation con-siderations, minus ability to pay, minus supplemental environ-mental projects.’’

My concern that I hope that you can address is that it seems you all have a tremendous amount of discretion when it comes to en-forcing a penalty, that is No. 1. And, to be honest, I have never seen a formula with so many variables here. And not only do we have so many variables, it is EPA that decides what the gravity is, what the economic benefit is, what that litigation consideration is, and you also decide what the business’s ability to pay is.

This is very confusing, and how is this approach assisting busi-ness owners into compliance? It seems like we have the EPA against our businesses, and can you explain this policy.

Ms. SHINKMAN. Thank you, Senator. I will attempt? Senator ERNST. Very frustrating. Ms. SHINKMAN. Well, I appreciate that, and those of us who work

with it every day perhaps get a little more familiar with it and per-haps lose sight of how it might look to someone for the first time or the second time. So, maybe we need to look at our language a little bit better. But, I can explain a couple of those elements to you——

Senator ERNST. Please. Ms. SHINKMAN [continuing]. In a way that I hope will be helpful. Starting from the back, the ability to pay, the only way EPA de-

termines or makes any finding about ability to pay is based on what the violator submits. If we have a penalty amount that seems to be appropriate, and I will get to how that is derived in a minute, but if the entity says that they do not think they can pay, we ask them to explain that and give us some information about why, and we look into realistically whether that is true, based on tax returns or other economic financial statements that a business might pro-vide.

So, the EPA does not pick out from the air what the ability to pay is. We work with the information that is provided by the enti-ty, and we give that opportunity to provide statements about pay, and very often it leads to a reduction in the penalty. So, that is how that determination is made toward the end.

The economic benefit is a way of finding out whether a company that, if not in compliance, benefited by not having to, say, pay for controls that all of their competitors had to pay for. If there is some kind of equipment that costs maybe $10,000 a year to operate and

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the entity that was in noncompliance did not install it but all of their competitors did, they received an economic benefit of $10,000 every year that they operated without that control. So, that would be an economic benefit that would be part of the penalty calcula-tion.

Senator ERNST. But, all of this is decided by the EPA, correct? Ms. SHINKMAN. In discussions with the company. We would not

have the information without talking to the company. But, we would ask, if we saw that they did not have the control, we would talk perhaps to the competitors, perhaps we would know what that control cost, and if it was not there, it is an iterative process, com-ing up with a penalty. Those are two elements that are distinct that you mentioned. That is how the ability to pay works. That is how the economic benefit works.

And then the other considerations that some, I think, were listed as part of what we call the gravity component, that is where the willfulness as opposed to the unknowingness comes in, and the length of the violation—if it was a spill, whether it went on for a month or a day, what the harm was from it. Those are the kinds of considerations that come in, and sometimes in a matrix way that we work with the company on to try to determine what the appro-priate penalty is.

And, we resolve most of our cases through settlements by having this discussion. And, rather than just having a free-wheeling, what do you think is appropriate, we set out these guidelines. The eco-nomic benefit is one and then the gravity component is built—con-sists of these other considerations, like damage, length of time, the prior history of the violator.

Senator ERNST. OK. And, I know I am going way over. I am going to make one final point, because we have cases like Senator Peters was just discussing with the Flint water situation, where the EPA did know something. We do not know the full extent of this, but the EPA knew. We have a mine spill that affected a river. Who decides if the EPA is at fault and how much they should be fined for incidents like this?

And, I know you cannot answer that. That is just one of those questions out there that, it seems like the EPA has got so much power and control over so many situations. You try and gain more control through expanded definition of Waters of the United States, but you cannot honestly manage what you already have under your belt.

So, I am going to stop right there, but I appreciate the extra time. Thank you very much.

Senator LANKFORD. Senator Heitkamp. Senator HEITKAMP. Thank you, Mr. Chairman. As someone who once upon a time, when I was tax commissioner,

had to write a penalty policy, I sympathize, because frequently, if you just leave it up to discretion without any kind of policy, what you get is the squeaky wheel gets the grease and everybody else who is in exactly the same situation is not treated fairly, if they say, well, I did it, so I am going to pay the penalty. We need to make sure that that does not happen, and so I would just suggest to you that people can be bitter if they find out, boy, I did not get

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my penalty waived or reduced, but he did simply because he asked. And, so, I just set that out as one of the concerns.

But, my main reason for wanting to have this hearing and for how I look at this is penalties should be last resort. That should be the very end of enforcement. That should be the end of regula-tion. That should be reserved for those people who do not get it, who have done something that is, in my opinion, fairly blatant, knowing that they have not been in compliance with the regula-tion.

I was intrigued by the stakeholder discussions, because I think compliance is why we have penalties, and you should all want, as agency heads, to walk in and never assess a penalty. It means that you are doing your work on the front end in terms of compliance.

And, so, I was interested in the work that OSHA does with stakeholders that you discussed in your testimony. Can you elabo-rate how you reach out to safety organizations and how you col-laborate with manufacturers and stakeholder groups.

Mr. BARAB. Yes. We have a number of means of doing that. First of all, we have a fairly large part of our budget that goes to compli-ance assistance. I think it is this year about $68 million.

Senator HEITKAMP. What percentage is that? Mr. BARAB. Well, it is a little over 10 percent, probably 12 per-

cent—— Senator HEITKAMP. You may want to up that a little bit. Mr. BARAB. Well, it has actually been cut back since—that is one

of our budget items that has never really recovered from sequestra-tion, which is rather upsetting, because what that money does largely is go to paying for what we call compliance assistance spe-cialists, which we at one time had one in each one of our 85 area offices. Now, we are not able to quite afford that anymore. And, what these compliance assistance specialists do is they work with businesses to make sure that they are aware of their obligations under the law, that they are aware of best practices, that they are aware of basically how to keep their workplaces safe.

Senator HEITKAMP. North Dakota has a workforce safety pro-gram that is State run, and I think it might be one of the—it used to be everybody had State-run systems and now we have transitioned. Can you talk about how you work with the State- based systems? Could you not expand your outreach in terms of workforce safety by working with the insurance agencies?

Mr. BARAB. Yes, and we do try to work with everyone, not only with private sector stakeholders, but with the States. Now, North Dakota is not one of the States that has its own health and safety program, so we are directly responsible for enforcement of health and safety, workplace health and safety.

Senator HEITKAMP. And you have two inspectors in North Da-kota.

Mr. BARAB. Yes. We are trying to up that. Senator HEITKAMP. Yes. Mr. BARAB. We know there is a major problem there. We are ac-

tually opening an office—and right now, we actually have an office that covers South Dakota and North Dakota. We are opening up a new office in South Dakota so that we can put more resources into North Dakota, because we realize, given the oil boom there,

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there is a major demand, and, the incidents and injuries and ill-nesses and fatalities that have come along with that. So, we do try to work very carefully with the States where they have those re-sources, again, as well as with the private sector in all States.

Senator HEITKAMP. When I served on the board of directors of a large chemical—that is what is was—gasification plant, I mean, we had a safety report before we did anything else, and I think the industry is very interested in workforce safety. It is expensive not to be focused on workforce safety. And, a lot of the programs like the ones that are run by the State of North Dakota encourage com-pliance and, so, I am trying to basically say, let us not get out there with a ‘‘gotcha.’’ Let us get out there and invest a lot of resources in meeting kind of compliance on the front end.

The other thing that will be a bonus as a result of that is you will begin to understand how some of your regulations are per-ceived and that they do not add value to safety and the workforce. Those are regulations that have been written in Washington, D.C., that, as Senator Ernst talked about, when they are applied, do not necessarily achieve a result that in any way adds value to work-force safety.

And, so, I just really think 10 percent of the compliance budget, or enforcement budget, going to educating and getting people into compliance is an inadequate balance.

I am kind of running out of time, but I would like to know what that split is at EPA.

Ms. SHINKMAN. I do not know offhand what it is. We could cer-tainly get that information for you. We do have compliance pro-grams, particularly for small businesses and for agriculture——

Senator HEITKAMP. Why do you think everybody is so afraid of EPA? No, I mean, I think, you sit here, and I think sometimes EPA feels under siege, but we hear it when we are there. We hear the concerns. We hear the fear. That is not exaggerated and it is not an over-focus of ours. So, what is it about your agency that strikes the fear in the heart of the people you regulate?

Ms. SHINKMAN. I do not think I can answer that directly. I appre-ciate——

Senator HEITKAMP. I am just making my point. You do not need to try and answer that question. But, I think it is a legitimate point and I think it should cause some soul searching within your agency on why that is and how you can do a better job working with those people.

You can only look at what happened in Flint and realize how critically important it is, what you do. I mean, and that you do what you do well. Flint is a reminder to all of us that we need these agencies. But the question becomes, how do we prevent this from happening, as Senator Peters talked about, but also, how do we develop a better relationship long-term.

Mr. BARAB. Senator, if I could correct one thing I said, I men-tioned our $68 million for compliance assistance.

Senator HEITKAMP. Yes. Mr. BARAB. That is our Federal compliance assistance budget for

the services that I mentioned. We also have what I mentioned in my testimony——

Senator HEITKAMP. Right, the State——

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Mr. BARAB [continuing]. Which is our consultation budget, which goes totally to small employers, and that is about $50—I think it was $57 million, so that is added to the $68 million that I men-tioned before.

Senator HEITKAMP. I will followup with some questions. Mr. BARAB. OK. Senator HEITKAMP. And, I am interested in what your plans are

for the Dakotas, so—— Mr. BARAB. Sure. Senator LANKFORD. Let me just give you a couple quotes. As we

asked the question, and we let people know that we had this hear-ing and were trying to gather information and background sources, and I have several stories and things that I can share on it, let me just pull a couple quotes here, just about the fines and the mindset of when inspectors come.

One person told us that they were told that when an inspector came, they said to them, ‘‘if it takes all day, we will stay until we find a violation’’.

One person said, ‘‘the EPA views businesses as an ATM to be fined, regardless of the determinations of an investigation’’.

Another one said, ‘‘the determination of whether there is a fine and the amount depended on the mood of the investigator’’.

Said this one, ‘‘there has been a culture change from one of com-pliance assistance to one of scaring people into compliance’’.

And then this one, ‘‘more stick than carrot’’. I thought it was in-teresting.

Now, I would tell you, just interacting with the two of you and hearing your mindset and your view on this, I think if most busi-ness folks were sitting across the table from you and talking back and forth, they could work a lot of things out. But, there is a real sense, and what Senator Heitkamp had mentioned before, I have heard from numerous employers saying, if I went back—and people that own small businesses—if I went back 10 years ago, when someone showed up for an inspection, they were extremely helpful to me and they were helping me find safety issues. Now, they show up and they are just a fine.

And something seems to have shifted, and now it has gone from ‘‘I am grateful to have the help to walk around the facility with fresh eyes,’’ to, ‘‘oh no, they are coming. I am going to have to pay a fine for something, no matter what it is’’. So, I do not know if you could say what has occurred, but that real life sense is out there, and so this perception that for many is reality, of I do not want an inspector to come help me to find safety violations because I know I am going to have a fine. Even if it costs them all day to stay here, they are going to find something.

Some of this goes back to the training you all talked about be-fore. I know EPA had the wonderful experience of several years ago having someone in Region 6 say, ‘‘the way we do this is like the Turks used to do it, to go into town and grab five guys and crucify them. Then there are no problems after that’’. Obviously, that is not the EPA’s attitude as a whole. And, when you talk about trying to train people in regions and making sure it is consistent, that comes to mind immediately when you think there was a region that was most certainly not consistent with the EPA national value.

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I am actually going to get to one—my question is, how do you balance out the issue of compliance and the real deterrence that a fine is and being helpful to someone in being able to walk through? We want any business to have a fresh set of eyes to look around for health and safety issues. We do not want them to be able to push us away. How are we currently trying to balance that out to reengage with business, to say, we want to be able to help in the process? And, I will have just both of you mention that.

Ms. SHINKMAN. Thank you. First, I would like to address the dis-connect that you have described. Clearly, that is what it is, I hope. Certainly, from EPA’s perspective, we really believe in our mission to reduce pollution and protect the health of the communities that we all serve. That really is the mission. That is how we feel about it. I understand that there is a perception out there as you have well described. And, so, we need to work at getting around that dis-connect.

I believe there are a couple ways that we have tried. We do have compliance assistance available for small businesses. We have tried to improve on that and making it available.

We have also focused on some of our penalty and enforcement methods to look at ways to deal with small entities, with small vio-lations. We have expanded our—we call them Expedited Settle-ment Agreements (ESA). These are ways that we can, when there is a small violation seen in the field, we can address it rather quickly. We use this for things like underground storage tanks where there might be a leak, some recordkeeping in some of our chemical violations, things that we see that are small, can be rem-edied quickly. We try to have what is really a non-negotiable agree-ment. It is small. These are the facts. We can all agree to them quickly. And we have tried to expand our use of those so that when there is a small violation that can be dealt with quickly, we can use that.

Senator LANKFORD. Can you walk me through the settlement process? And this will be one, Mr. Barab, I want to get a chance to visit with you, as well. You both mentioned the settlement. There is a very clear process, and as Senator Ernst had mentioned before, I get it as far as the benefit and the cost and the risk and all those things. I get the process and going into that.

Ms. SHINKMAN. Sure. Senator LANKFORD. The challenge is, once you go through that,

you set a fine and then there is a process to have a conversation on the settlement. Here is the fine. Now, let us talk about if we are going to settle on it. How does that part of the process work? What is the mechanics of that?

Ms. SHINKMAN. OK. Let me start maybe a little earlier. It really is an incremental process. An inspector goes out and sees that there is a problem.

Senator LANKFORD. Right. Ms. SHINKMAN. Unless it is an emergency that needs to be ad-

dressed immediately, there is usually a discussion about it and then they come back to the office and discuss what, if anything, needs to be done about it from an enforcement perspective.

After that determination is—if there is a violation that actually merits taking enforcement action, then there is a discussion about

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what level of enforcement to take. Is this something that can be dealt with administratively by going back and talking about it and seeing whether it is a small, quick resolution or whether it is some-thing that is going to require changes at the facility that would re-quire some investment and some monitoring. An awful lot of them do not, but if they do, there is a further discussion about that.

Senator LANKFORD. Can I ask you a quick question on that? When you find a violation, does that warrant a fine every time?

Ms. SHINKMAN. It depends—— Senator LANKFORD. As far as, do you feel an obligation coming

at you either legislatively or from a guidance that if there is a vio-lation, that is a fine?

Ms. SHINKMAN. We have enforcement discretion and we can—— Senator LANKFORD. OK. Mr. Barab, do you all have enforcement

discretion, as well? Do you feel that—— Mr. BARAB. I would say, generally, we are required to issue a

fine of some sort when we find a violation. Senator LANKFORD. Every time. Mr. BARAB. There is some discretion there, but, yes, that is

the—— Senator LANKFORD. OK. I want to talk about that. I hate to in-

terrupt you, but I wanted to get some clarity on that to make sure we are heading in the same direction. Go ahead and you can finish, Ms. Shinkman.

Ms. SHINKMAN. So, there is enforcement discretion. We decide whether it is something that within our policies merits further ac-tion. That further action may be an administrative order or an agreement that we talk about, we reach agreement that the first thing we want to do is abate whatever the problem is.

Senator LANKFORD. Right. Ms. SHINKMAN. And, so, that is what is addressed first, whether

it is going to require additional action, stopping something, starting something, try to resolve it that way. If we reach that resolution, in most cases, there will be at least some penalty because there was noncompliance, and then we go through the factors to decide how large the penalty is.

In a bigger case, what would happen, generally, is there would be further discussions and there may even be a referral to the De-partment of Justice, and then there are further discussions within EPA, with the Department of Justice, and with the entity that is out of compliance. So, it is an incremental process, an iterative.

I think a lot of the things that you are hearing about tend to be the small ones. But, the reality is, there is usually a process and there is a lot of dialogue back and forth before there is an ultimate resolution about what injunctive relief or change needs to be made in the processes to make sure that the company is in compliance going forward, what mitigation needs to be done for any damage that might have—like a spill or something like that that needs to be cleaned up, and then, what penalty do we need under the stand-ards that we have.

Senator LANKFORD. We are still back to the settlement thing. The process, how to get there. Once the fine has been—the settle-ment that you are describing, is that typically a judicial settle-

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ment? We are in a court and we are trying to work through that? Or——

Ms. SHINKMAN. It could be both. Senator LANKFORD [continuing]. What is the other settlement? Ms. SHINKMAN. The other is administrative, in which case we

would have either an order that is appealable or a signed agree-ment, and that goes through our administrative process to the En-vironmental Appeals Board.

Senator LANKFORD. And that is a more fluid conversation that is happening——

Ms. SHINKMAN. Yes, it is. Senator LANKFORD [continuing]. Across the table. We agree on

the facts, now, what is a reasonable fine, and you are discussing that process.

Ms. SHINKMAN. We certainly try to reach agreement on all of those. Obviously, we do not always.

Senator LANKFORD. Mr. Barab, is the settlement process pretty similar for you all? Again, I understand once you get to the spot of a fine, an assignment, you had mentioned very well about the exact numbers and the changes that have happened in the Budget Act and such from there. But, I am talking about the settlement process at the end.

Mr. BARAB. Yes. Our process is slightly different than EPA’s. Once we finish the inspection, the inspector then goes back to the office. The area director actually has authority over what the pen-alty will be, assuming any kind of violations have been found.

At that point, the employer has 15 days to contest the citation, if the employer wants to do that. During that 15-day period, there is a chance, and we strongly encourage employers to engage in what we call our informal settlement process. So, the employer comes into the office, the area office, and sits down with our area director and they try to work out some kind of settlement, if pos-sible. And, again, looking at the violations there were, looking at the employer’s defenses, looking at the abatement period. All of those things are discussed during that informal period. And, again, in about two-thirds of the cases that we have, we do reach some kind of settlement at that point with the employer.

Now, if no settlement is reached, then within that 15-day period, the employer can contest, legally contest, the citation. That then goes to the Occupational Safety and Health Review Commission. There are Administrative Law Judges (ALJ) that decide that, and that case then moves up that ladder.

Senator LANKFORD. OK. Let me ask the question about the flexi-bility that you have or do not have on fines. Is it a guidance or is it statutory that if you see a violation, there has to be a fine?

Mr. BARAB. That is statutory, and our maximum penalties are set also by law.

Senator LANKFORD. OK—— Mr. BARAB. But we are also—— Senator LANKFORD [continuing]. But as far as a minimum pen-

alty, that is statutory that it requires—— Mr. BARAB. The only place there is a minimum penalty is with

willful violations, and that is a $5,000 minimum, $70,000 max-imum. As I mentioned, there are also—by statute, we also have to

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consider, as EPA does, size, history, and good faith. So, there are almost always reductions there.

Senator LANKFORD. So, at the end of this, as you all both men-tioned that the goal of the penalty is always deterrence, and I get that. But, the goal of the regulation and of the statute is usually health and safety and environmental protection and such, and the fine, the penalty here, becomes a vehicle to help accomplish some of that. But, I do not know of anyone that has written a statute to make sure that we fine some entity, as well. That is the worst case scenario for us.

I give you the easy example we have all experienced. My daugh-ter when she was in high school was pulled over by a police officer because her dad, me, was not helping her watch for things like a headlight that was out. Now, she is also a teenager and she can watch for that herself, but as the dad and the 16-year-old gets pulled over with a headlight out, she was given a warning by the police officer and said, ‘‘hey, did you know? ’’ She said, ‘‘I did not know, did not catch it.’’ He gave her a warning.

We got back home and spent $125 rearranging the front of her car to do a new headlight. Joy, OK. She got a warning. We fixed it. The health and safety issue of getting both headlights working was accomplished.

What I am trying to figure out is, how much flexibility do your compliance folks have to be able to walk in and say, you know what? That trash can is in the wrong spot, and someone to say, I did not realize. When I walk through manufacturing locations, as you all do all the time, as well, on the wall somewhere, there is a library of four-inch plastic binders that are sitting up there with all the regs and all the requirements and most of the people that run the manufacturing locations live in dread that they have missed a page somewhere from those six four-inch binders that are up there on the wall somewhere trying to make sure that they miss it.

How much flexibility do you feel like you have to be able to help people, to say, you missed one, and it is not necessarily a fine, and it is not necessarily, a leak that is going to damage a lot of folks or was not necessarily health and safety, but they missed one.

Mr. BARAB. There are certainly small things that we correct as we walk around, or ask the employers to correct. There is no doubt about that. But, again, our concern is saving lives, and——

Senator LANKFORD. Sure. Mr. BARAB [continuing]. Our serious violation, which is only the

maximum of $7,000, there is a requirement the way a serious viola-tion is defined in that it has to be likely to cause death or serious physical harm. So, those are, again, fairly serious, as the term is, when we find those, and——

Senator LANKFORD. I have no issue with that. I am talking about minor fines.

Mr. BARAB. Yes. Senator LANKFORD. One of my manufacturers was fined because

he had a shelf in his workspace for one of his workers that was six inches too low. Now, I do not know all the story on that, but I stood on the floor with him and I said, ‘‘that shelf right there? ’’ And he

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said, ‘‘Yes, that shelf right there, we had to raise by six inches and we got a fine for it.’’

Mr. BARAB. Yes. I mean, we hear stories like that, and generally, when we look into them, usually, there is something else accom-panying that with it that is of a more serious nature. But, when we have situations like that, we are always happy to look into them, but it sounds unlikely that there would be any kind of fines——

Senator HEITKAMP. But, I think what we are asking is, let us say you see an extension cord that is located in a location where some-body could trip. That is obviously a hazard. You note it. Are you telling me, because that is a violation, you have to assess a fine?

Mr. BARAB. We also have various means. We have other than se-rious fines, where they can be very low. We have a quick fix, where we can—if the employer fixes it right away, we can either minimize or, in some cases, eliminate the fine, so——

Senator HEITKAMP. Yes, right there. Stop. Mr. BARAB [continuing]. OK. Senator HEITKAMP. You said, ‘‘eliminate the fine.’’ So, you do

have discretion to not impose any fine—— Mr. BARAB. In exceptional cases—— Senator HEITKAMP [continuing]. Based on—— Mr. BARAB. In general, our law requires us to issue a fine when

we find a violation, especially if it is a serious violation. But there are other than serious violations. Now, an extension cord, I mean, that is something that it can cause fires, electrocutions——

Senator HEITKAMP. No, I know. Mr. BARAB. It is not necessarily—I mean, people throw some

things out, but they actually, when you look at them, when we look at the past history——

Senator HEITKAMP. No, I thought it was a good example, because it can be, in the wrong place, incredibly dangerous. But, my point is, I would have to go back and take a look, because I am shocked that you could not waive a fine or a penalty in its entirety given kind of the relationship and compliance and what do they know and lack of knowledge and severity.

So, we will followup. I have to go vote. Senator LANKFORD. Thank you. We will finish up in just a couple

of minutes, because I am going to have to go follow and vote, as well.

This is one of the areas that we want to examine. It is the reason we have this type of hearing and debate. We will dig into it and find out from you all what you need, because I would hope that you are in the same position that we are working on health and safety and making sure we are protecting lives and this is not all about fines. As you mentioned before, the fines are not coming back to the entity themselves, anyway, so this is not a, quote-unquote, ‘‘money maker’’ for the agency. It is a deterrent, but we have to find a way to be able to balance this out.

One of the things that I had noticed was in 2011, the President issued a memorandum for the heads of the executive departments on regulatory compliance. OSHA and EPA were specifically noted in that for being good actors in it and highlighted some of the com-pliance and enforcement information and how you are making that

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publicly available. So, that is a positive thing to say. Your agencies both are building in transparency on the basic issue of compliance and enforcement information.

Not every agency is dealing with this. I am not going to ask you to answer for everyone else. But, the Department of Transportation (DOT) updated their stuff in 2011, and then since 2012, there has been no change at all on their website on the information on com-pliance and enforcement information.

So, one of the things that we are asking of the administration is to help us, when the information gets out there and is helpful, to make sure all agencies are actually fulfilling that, are getting that information out, which both of your agencies are, but the Depart-ment of Transportation is not. So, that kind of consistency is ex-tremely important.

We do need to work with your entities on things like minor viola-tions. Was a poster missing? Was a piece of paperwork missing? Again, I had another agency and another entity that I dealt with as a manufacturer in my State that had not turned in paperwork a particular year saying they had nothing to turn in, and their wrong assumption was, I had nothing to report and so I did not have to turn in that report this year because there was nothing to report. They ended up having a huge fine come down on them for not turning in paperwork saying they had nothing to turn in.

Well, again, that just begs this question of how is that helping health and safety? That is a paperwork violation issue. There should be a, hey, you did not turn that in. You are right, we did not turn it in. But, instead, they had a fairly significant fine that came down on them for that. That is the kind of stuff that we need to figure out, to say, if you feel bound, or if agencies feel bound to be able to do a fine in that type of situation, then we have a prob-lem.

One of our businesses said that they were hesitant to voluntarily invite OSHA into the workplace to do the onsite consultation pro-grams because of their concern over that. Now, I heard from both of you, you want to work especially with small businesses to do the onsite consultation, to be able to help them through that. What is something that can be done to encourage more businesses to say, invite us to come in. We are not coming in to fine you. We are com-ing in to be able to help, to do almost a pre-inspection inspection.

Mr. BARAB. Yes. I often call our consultation program our best kept secret. It is a wonderful program. We try everything we can to really promote it, not only ourselves, but through associations. And, I want to emphasize, and we try to emphasize this with em-ployers, we fund at least 90 percent of the consultation program. We do not run it, though. We give that money to the States and they run it. So, it is totally separate from OSHA, and that is what we try to emphasize to employers, that this is totally separate from OSHA. It is a free visit, basically, that small employers can receive and everybody should be taking advantage of it.

Senator LANKFORD. But, some are concerned that they should not because they are, for whatever reason—what I am telling you is, it is a good program——

Mr. BARAB. Yes.

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Senator LANKFORD [continuing]. And it does focus on health and safety and on compliance on issues and thinking outside the box and some things. There has to be a way to be able to communicate this so that individuals know, hey, this is a neutral spot. Unless there is some major gross something that is here, this is a good spot.

Mr. BARAB. Well, we would love to work with you on ways to do that.

Senator LANKFORD. OK. Mr. BARAB. There are a lot of myths out there that we would love

to be able to combat and we would love to work with you to do that.

Senator LANKFORD. Well, this is something, I am saying, percep-tion and reality. This is a business owner that said it to me di-rectly. Yes, I know there is that type of a consultation. There is no way I would take that. Ms. Shinkman.

Ms. SHINKMAN. And, I would just briefly like to say, particularly for small businesses, we have an audit policy where, if they volun-tarily disclose and fix what it is, there is minimal, if any, penalty at all. So, we encourage it. The sooner it is disclosed, the more vol-untary audit of themselves to determine what the problems are——

Senator LANKFORD. Is that the eDisclosure program? Ms. SHINKMAN. Yes, it is. Senator LANKFORD. OK. Tell me a little bit about how that

works, and what I would like to know is, how do you evaluate its effectiveness on how it is actually accomplishing the mission? How do you evaluate that?

Ms. SHINKMAN. Well, it is about 2 months old, so I am not too sure——

Senator LANKFORD. OK. It is a little early, then, yet. Ms. SHINKMAN. I do not think we can give you any kind of an

evaluation. But, it was formed so that we could quickly see these audit disclosures for a number of cases, particularly smaller ones like you have described, and for small businesses where they, through a web portal, give us notice of what they have disclosed— what they are disclosing——

Senator LANKFORD. So, give me an example of some of this, be-cause this is their own safety systems, right, their own safety checks that they are doing. They find something, know it is a viola-tion. Give me an example of something they would turn in and say, hey, we found something. We are going to report it.

Ms. SHINKMAN. We have determined that we do not have the number of containers that we are supposed to for a certain thing, or they have not been updated at a certain time. So, we are going to do that. We discovered it at X date. We did whatever it is to remedy it. It will be done by Y date. And, we are disclosing it to you now and we have a policy for making sure that it is not going to happen again. And, this is all disclosed electronically, and if all of the criteria are met, they will receive a notice that it has been disclosed and their issue would be closed out.

Senator LANKFORD. And, including the benefit? Penalty, as you mentioned before, part of the penalty is did they receive some sort of benefit by delaying that. Would that be waived, as well, or would that be something you guys would look at and go, hey, you did not

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change this. You got an arbitrary benefit that other companies did not get.

Ms. SHINKMAN. I think that would not apply here, because part of the criteria is the early disclosure.

Senator LANKFORD. OK. Ms. SHINKMAN. So, the criteria themselves eliminate those prob-

lems. Senator LANKFORD. OK. That will be one that we want to watch,

to be able to see how that works, because that gives a clear set of guidelines out there that people can find and note and to be able to help self-manage. I just want you to know from our Committee, we are going to watch and figure out how that is being evaluated to see if that is something that can be shared with other agencies and entities.

I would also share, as well, and this is just in our ongoing con-versation about fees and fines and penalties, we are watching some entities like Fish and Wildlife Service. Fish and Wildlife Service has the opportunity for a penalty or to be able to make a contribu-tion to a third-party organization that is a nonprofit. We are trying to figure out who sets that, who guides that, where does that money go. That is money that would have been to the General Treasury now that is to certain outside third-party entities for miti-gation or whatever purposes, and, so, we are asking, I think, a fair question for the taxpayers’ behalf.

If it is a fine that goes to the General Treasury or that you do-nate to a third-party organization, we want to know who picks that and where does that go and what is the long-term benefit of that.

EPA uses Supplemental Environmental Projects (SEPs), but my understanding is that is you can have a penalty or you can basi-cally fix it and here is what we would encourage you to do in some ways. How are those SEPs decided?

Ms. SHINKMAN. Those SEPs are voluntary by the company if they—to set off part of the penalty by doing a project. Let me make it clear that they are never cash donations.

Senator LANKFORD. Right. Ms. SHINKMAN. They are always voluntary projects to help the

environment. There needs to be a nexus between what that project is and what the violation was. There will also always be some cash penalty. It is not 100 percent mitigation against the penalty and——

Senator LANKFORD. Is it typically 80 percent? Because the goal, again, is to deal with health and safety and environment at that point. So, you are saying it could be a control project or monitoring project or something else around them or around the city or around the community——

Ms. SHINKMAN. It could be—— Senator LANKFORD. What does it typically look like? Ms. SHINKMAN. Typically, it looks like something like a decision

to do monitoring for children for asthma or for lead in a certain school district for a certain period of time. The asthma might be the result of a clean air violation. The lead, for a different kind of— the lead monitoring, those sorts of things, purchase of emergency equipment if there has been a violation that is similar to that.

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So, here is a policy. We have redone our entire policy so that it is much clearer. We did that last year, so the standards that are necessary to meet—we have strict standards and they are more clearly set out. A small business can get up to 100 percent set off of their penalty. Others, usually, it is around 80 percent. It really depends on the quality and the type of the project. But, it is never money that is just handed to somebody. It is never a project that EPA itself controls.

Senator LANKFORD. Right. EPA is different than other entities on that. There are other entities that are doing mitigation separately to an outside third party rather than a fee or fine, and that is one of the questions we will ask. Obviously, I am not going to ask you to answer for another entity on that.

We are quickly running out of time, and I know you are thor-oughly enjoying this conversation, but we do have votes that are happening currently. I have to head over to that. I am not going to hold you over to be able to come back and forth.

I do want to maintain this conversation. What we would ask of you is I am sure that there are ideas that you or your entities would be interested to be able to share ways they can improve this process, whether that be process changes, issues in statute that had become a problem or that create a barrier between the people we serve and those of us who serve them, as you do, as well. That should be fixed and could be fixed. I want you to know, those are the type of things we are also looking for, as well. This is not a one-way conversation.

And for this Committee, we hope to be able to put products out in the days ahead to say, let us help fix some of the broken rela-tionships that we have there and still be able to work on health and safety and environmental protection that need to be done. So, as you have thoughts on that, we are free to hear those and we are interested in those, as well.

I appreciate you being here and for the work that you put into this conversation and we will do some followup with some ques-tions for the record in the days ahead on that.

I would like to make a statement to all that on February 24, this Subcommittee will also hold a hearing examining the burden of Federal statutes and regulations placed on State and local govern-ments, what we have learned since the passage of the Unfunded Mandates Reform Act of 1995, and how the Unfunded Mandates Information and Transparency Act can improve upon those efforts.

This will conclude today’s hearing. The hearing record will re-main open for 15 days, until the close of business on February 26, for the submission of statements or questions for the record.

With that, thank you very much to our witnesses. This hearing is adjourned.

[Whereupon, at 10:48 a.m., the Subcommittee was adjourned.]

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